Knoetze v. U.S., Dept. of State

Decision Date12 January 1981
Docket NumberNo. 79-2293,79-2293
Citation634 F.2d 207
PartiesNikolaas "Kallie" KNOETZE, Plaintiff-Appellant, v. The UNITED STATES of America, The DEPARTMENT OF STATE et al., Defendants-Appellees. . Unit B
CourtU.S. Court of Appeals — Fifth Circuit

Michael John Ryan, Port Arthur, Tex., for plaintiff-appellant.

Peter Nimkoff, Spec. Asst. U. S. Atty., Miami, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before VANCE, HATCHETT and ANDERSON, Circuit Judges.

HATCHETT, Circuit Judge:

In this case we have determined that Congress has conferred upon the Secretary of State, through 8 U.S.C. § 1201(1), the power to revoke a visa issued to an alien who has entered the United States. We have reviewed the Secretary's revocation of the visa issued to appellant Nikolaas Knoetze under the standards of the Administrative Procedure Act, 5 U.S.C. § 706(2), and find that the Secretary lawfully acted within his discretion. We reject Knoetze's contention that the revocation of his visa without notice violated constitutionally mandated due process of law. We therefore affirm.

FACTS

The trial court has extensively described the facts and procedural history of this case. Knoetze v. United States, 472 F.Supp. 201 (S.D.Fla.1979). We summarize them as follows.

Knoetze, a world-class boxer and former policeman from South Africa, came to the United States on a non-immigrant visa to take part in a prize fight. Knoetze then discovered through the news media that his visa had been revoked. The Secretary of State revoked his visa after concluding that Knoetze was convicted in South Africa of a crime corresponding to an American felony involving moral turpitude. The Immigration and Nationality Act renders such foreign convicts ineligible for a visa of entry into our country. 8 U.S.C. § 1182(a)(9). 1

Knoetze received a preliminary injunction against deportation and competed in the prize fight. He also applied for an H-class visa, which would have permitted him to work in this country. The Immigration and Nationalization Service (INS) denied this application because of the Secretary's act of revocation.

The trial court refused to grant a permanent injunction against the revocation of Knoetze's visa. The court agreed with Knoetze that the Secretary's act of revocation was subject to judicial review. The court also considered Knoetze's charge that civil rights leaders had exerted such intense political pressure upon the executive branch as to constitute impermissible levels of "political interference." Yet the court accepted the position of the Secretary that Knoetze's visa was lawfully revoked because of an admitted conviction in South This South African crime is entitled "Attempting to Obstruct or Impede the Process of Justice." The indictment to which Knoetze pled guilty alleged that he made several false statements while serving as a policeman in order to persuade citizens of his country to drop assault charges against a fellow police officer. The trial court accepted the conclusion of the Secretary that Knoetze's criminal conduct corresponded to the United States felony of "Influencing or Injuring an Officer, Juror or Witness," 18 U.S.C. § 1503, a felony involving moral turpitude. The trial court therefore upheld the Secretary's act of revocation.

Africa for a crime which the Secretary reasonably viewed as equivalent to an American felony involving moral turpitude.

ISSUES

Knoetze's appeal of this decision raises the following issues:

(1) May the judiciary review the Secretary's revocation of a visa held by an alien within our country?

(2) If so, what are the appropriate standards of review at the trial and appellate levels?

(3) Does the Secretary have the power to revoke visas issued to those already within our country?

(4) If so, what limits exist upon this power?

(5) Did the Secretary violate any such limitations when revoking Knoetze's visa?

JUDICIAL REVIEW

We agree with the trial court that the judiciary may review a decision by the Secretary of State to revoke the visa of an alien within our country. On appeal, the government has dropped its argument of non-reviewability.

The proper standard of judicial review is expressed in the Administrative Procedure Act, 5 U.S.C. § 706(2). This is the limited standard of review applicable in the analogous context of deportation proceedings. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950); Jarecha v. Immigration and Nationalization Service, 417 F.2d 220 (5th Cir. 1969). The relevant portions of this Act provide:

The reviewing court shall-

(2) hold unlawful and set aside agency action, findings, and conclusions found to be-

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

Under this limited standard of review, we can enjoin the revocation of Knoetze's visa only if the Secretary has violated the law or committed a clear error of judgment. Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Refrigerated Transport Co. v. ICC, 616 F.2d 748 (5th Cir. 1980). Our standard of review is the same as that of the trial court.

Congress has conferred upon the Secretary the power to revoke a visa in the following language: "After the issuance of a visa or other documentation to any alien, the consular officer, or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation." 8 U.S.C. § 1201(i). No court has been called upon to decide whether this broad language confers authority upon the Secretary to revoke the visa of an alien after his entry into our country.

Knoetze argues that § 1201(i) merely confers revocation power prior to an alien's entry into the United States. He makes three supporting arguments. First, the overall statute to which this section belongs addresses the procedures for the issuance of visas to foreigners seeking initial entry. 8 Second, Congress entrusted major responsibility over aliens within the country to the Attorney General, rather than the Secretary of State, under a wholly different statutory scheme. 8 U.S.C. §§ 1251-60.

U.S.C. §§ 1151-1230. The language of § 1201(i) itself, after authorizing visa revocation, goes on to treat the liabilities of a transportation company that brings aliens into the country after the revocation of their visas. 2

Third, Knoetze argues that the provision of due process safeguards in the Attorney General's deportation authorization, § 1252(b), coupled with the absence of any such safeguards in the Secretary's visa revocation authorization, § 1201(i), indicates a legislative intention of assigning responsibility for handling aliens within our country to the Attorney General, rather than the Secretary of State. Knoetze bolsters this argument by noting that aliens within the country are constitutionally entitled to procedural due process, while those outside the country receive no constitutional protection. Shaughnessy v. United States, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953). He contends that in recognition of this distinction, Congress provided procedural safeguards in the Attorney General's deportation authorization because Congress intended the Attorney General to have responsibility over aliens after their arrival. We disagree.

We accept the argument of the government that § 1201(i) means exactly what it says: the Secretary may revoke an alien's visa "at any time." We reject Knoetze's invitation to limit this clear and broad language. We must assume that Congress used the unambiguous words "at any time" as they are commonly understood, even if a different interpretation would yield a result we would prefer. United States v. Stewart, 311 U.S. 60, 61 S.Ct. 102, 85 L.Ed. 40 (1940); United States v. Porter, 591 F.2d 1048 (5th Cir. 1979). Moreover, we accord considerable deference to the interpretation of § 1201(i) by the Department of State, the agency empowered by Congress to administer the issuance and revocation of visas. E. I. duPont de Nemours & Co. v. Collins, 432 U.S. 46, 97 S.Ct. 2229, 53 L.Ed.2d 100 (1977). We hold that Congress has conferred upon the Secretary the authority to revoke the visa of an alien "at any time," even after he has entered our country.

We must now consider the substantive and procedural limitations upon the power conferred by § 1201(i). These limitations are implicit in the standard of review expressed in the Administrative Procedure Act, 5 U.S.C. § 706(2): (a) the Secretary must comply with any statutory procedures for the revocation of a visa; (b) the Secretary's act of revocation must not exceed his statutory authority; (c) the Secretary may not abuse his discretion by acting capriciously in revoking a visa; and (d) the Secretary must respect the constitutional rights enjoyed by visa holders within our borders.

The Secretary's method of revoking Knoetze's visa violated no statutory procedural requirements because the authorizing statute contains no procedural requisites. 8 U.S.C. § 1201(i). The Secretary acted within the bounds of his statutory authority because § 1201(i), as interpreted above, permitted the Secretary to revoke Knoetze's visa even after Knoetze had fully entered our country.

We further find that the Secretary lawfully acted within his discretion in revoking Knoetze's visa. The trial court determined Strong evidence of the politicalization of an otherwise routine, bureaucratic decision might raise a suspicion of discriminatory agency action. In this case, however, it is indisputed that Knoetze pled guilty to the South African crime of "Attempting to Obstruct or Impede the Process of Justice." Those who have been...

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